Randall

This case has been here twice before. ( 79 Cal. 115 ; 101 Cal. 82 .) For a fuller statement of facts reference may be had to those appeals.

*34 Plaintiff was appellant in the appeal reported in 101 Cal. 82 . He then complained of the judgment in various respects. Among others, that the trial court allowed interest only up to March 15,1885, the date of the filing of the cross-complaint, because that court thought the cross-complaint contained a sufficient tender to stop interest. This court thought the offer or tender in the cross-bill insufficient for that purpose, and that interest should have been allowed on the amounts credited to appellant down to March 1, 1892, at which time the whole amount was compensated or paid by damages allowed to the defendants for plaintiff’s occupation of the mortgaged premises. The judgment of this court was:

Interest had been allowed in the decree then appealed from at legal rates, but the court held that, as to a portion of the moneys with which plaintiff was credited in the accounting, he was entitled to be subrogated to the rights of the mortgagees under an ineffectual foreclosure of whose mortgages he had purchased, and by so purchasing had…

I concur in the judgment and in the opinion of Mr. Justice Temple. Of course when the lower court enters the judgment directed by this court there is an end of the litigation; but when there is a question whether or not the lower court has entered the judgment directed, then an appeal lies. If the appeal be frivolous, and not taken bona fide, the remedy is the imposition of heavy damages.

Hearing in Bank denied.

Beatty, C. J., dissented from the order denying a hearing in Bank.